Libya, the ICC and America’s aggressive wars

Libyan memorial to the 1986 U.S. bombing of Tripoli

Almost like clockwork, as the chief prosecutor of the International Criminal Court, Luis Moreno-Ocampo, announced yesterday that he would seek an arrest warrant for Muammar Gaddafi, the U.S./NATO alliance intensified its bombing campaign against the beleaguered North African nation.

As CNN reports today,

Crowds in Tripoli gathered Tuesday morning outside two burning buildings, the aftermath of what a Libyan official said were NATO airstrikes on government facilities. Spokesman Musa Ibrahim said the buildings housed the Ministry of Popular Inspection and Oversight – a government anti-corruption body – and the head of the police force in Tripoli.

“Is this NATO’s protection of civilians or terrifying civilians,” a Gaddafi loyalist asked CNN reporters. “This is a civilian neighborhood. … Residents are terrified.”

The attack coincides with a Russian-led initiative in which Libyan authorities have demonstrated willingness to reach a peaceful conclusion to the hostilities.

Following a meeting today with Libyan officials, Russian Foreign Minister Sergey Lavrov said that Libya was prepared to meet all the conditions of a UN resolution calling for a ceasefire in the country’s civil war.

“Tripoli has promised to meet in full all conditions set out by the United Nations,” Lavrov said. “We were told that Tripoli is ready to consider all means … to end the conflict.”

Lavrov restated Russia’s calls for a ceasefire. “Russia is very keen to see a rapid end to the bloodshed in Libya,” Lavrov said yesterday. “We have made it clear that we are ready to support any regional and international efforts that can achieve this.”

Yet, despite the Libyan government’s reiteration of its calls for a ceasefire in line with the African Union’s roadmap for peace, which calls for cooperation in opening channels for humanitarian aid and starting a dialogue between the rebels and the government, the U.S./NATO forces appear uninterested in a political compromise.

As RIA Novosti reported yesterday,

Colonel Milad Hussein al-Fiqhi, spokesman for the Libyan leader Muammar Gaddafi’s forces, was killed on Sunday in a NATO raid that targeted an intelligence headquarters in the capital Tripoli, Al Arabiya television reported. …

The Libyan state news agency said on Sunday that the recent NATO airstrikes again led to civilian casualties.

The uncompromising stance the U.S. is taking against Libya, may – ironically – have its roots in an institution that just a few years ago was considered by the United States a grave threat to its global hegemony, the International Criminal Court.

Despite U.S. opposition, on April 11, 2002, the Rome Statute of the International Criminal Court was ratified by enough countries to make the court a reality. “In refusing to sign the ICC treaty at the Rome Conference,” FindLaw wrote in 2002, “the U.S. found itself quite isolated.”

Only China, Iraq, Qatar, Yemen, Israel, and Libya joined in boycotting the court, while 120 nations voted in its favor.

Reacting hostilely to the Rome Statute’s ratification, President George W. Bush reiterated his opposition to the ICC and repudiated President Clinton’s decision to sign the accord.

“The United States has no legal obligations arising from its signature on Dec. 31, 2000,” the Bush administration said in a May 6, 2002 letter to U.N. Secretary General Kofi Annan. “The United States requests that its intention not to become a party … be reflected in the depositary’s status lists relating to this treaty.”

With strong administration support, House Republicans promoted a bill that would allow U.S. armed forces to invade the Hague, Netherlands, where the court would be located, to rescue U.S. soldiers if they are ever prosecuted for war crimes.

But now, a decade later, it appears that the U.S. is utilizing the  court that it once disparaged to help legitimize its intensifying attacks against Libya.

As the Christian Science Monitor reports today,

The potential that the International Criminal Court (ICC) could issue an arrest warrant for Libyan leader Muammar Qaddafi  … could give NATO more latitude to target the dictator directly.

So far, NATO airstrikes have focused on military targets – this morning they hit two government buildings in Tripoli, including the Interior Ministry. However, the head of Britain‘s military said on Sunday that NATO needed authorization to also strike infrastructure targets. There is speculation that the ICC warrants could justify NATO efforts to target Qaddafi, rather than simply to ‘protect Libyan civilians under threat of attack.’

So, how did the United States’ vociferous opposition to the ICC metamorphose into a whole-hearted endorsement of its prosecution of an officially designated U.S. enemy, in this case Muammar Gaddafi? How could the U.S. possibly use this international institution that it has opposed over the past decade towards its own ends, namely bombing Libya into submission?

The answer lies in the fact that under President Barack Obama, the U.S. took a new approach to the ICC. Rather than shunning it outright, the United States decided that it would be more effective to manipulate the Court towards its own ends.

When asked last year, following the ICC’s Kampala Review Conference, whether the United States would join the ICC, Harold Hongju Koh, Legal Advisor to the U.S. Department of State, faltered, saying:

I think our basic conviction is a strategy of engagement is good for the court and good for U.S. interests. We might as well start that process and make a serious effort at it, which is what we did. And as I said, the reaction was favorable. On the last day, they said, ‘We’re delighted to see a situation in which the U.S. is part of the solution for the court and not part of the problem.’

Stephen J. Rapp, U.S. Ambassador-at-Large for War Crimes Issues, followed up by saying:

It’s clear that joining the court is not on the table, as far as a U.S. decision at this time. But as you know, the United States takes a very long time to adopt international conventions and treaties, and sometimes doesn’t. I mean, it took us 40 years to ratify the Genocide Convention.

I think what we’re looking at here is how this court develops. We want to see it develop responsibly, to focus on crimes that involve truly massive intentional attacks on civilians, both in terms of the decisions made by its prosecutor on where to open investigations and also by its chambers, its trial chambers that have to decide whether, sometimes, to authorize those investigations or to issue arrest warrants.

What the U.S. delegation was primarily concerned about in this Review Conference was how the ICC might define the crime of “aggression.” In a statement to the conference, Rapp said:

The Eighth Session of the Assembly of States Parties ended without bringing its members close to resolving [the conditions that must be satisfied before the ICC can exercise jurisdiction over the crime of aggression]. Instead the session ended on a note that highlighted wide divisions, and this is not surprising. The questions the Special Working Group could not resolve after years of effort are inherently difficult and touch upon matters that have long elicited divergent answers.

And while the Special Working Group did produce a definition of the crime of aggression, key aspects of the definition are still uncertain. For example, what impact might the proposed definition, if adopted, have on the use of force that is undertaken to end the very crimes the ICC is now charged with prosecuting?

In other words, what the U.S. was asking last year, was, essentially, what if we decide to “enforce” these ICC principles – would we be subject to prosecution for war crimes?

Evidently, the answer was “no,” and so now the ICC is America’s new best friend.

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